Billotti v. New York Juvenile Asylum.

son mentioned in the writ before the court in order that the canse of his imprisonment may be inquired into. If there were to be none but a literal construction of the statute as it reads to-day, the writ of habeas corpus would be allowed only for the relief of persons actually imprisoned or restrained of their liberty within the State, and it would have no application to children who are kept from their parents or guardians, but who enjoy the largest possible liberty and freedom of action consistent with the protection of childhood. The writ of habeas corpus ad subjiciendam is invokable by parents or guardians purely by analogy, and Judge Brown, in People ex rel. Pruyne v. Walts (122 N. Y., 241), has well expressed in a few words the theory of the law upon the subject. He says: "The common-law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint. It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children. It was of frequent use, however, when children were detained from their parents or guardians on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment.”

That which authorizes the issuance and enforcement of a writ against the New York Juvenile Asylum in this case is that having had given to it the custody of these children for a limited time and on an agreement to return them at the expiration of that time, it refused to so restore them. Its detention of them from the custody of the parent is a detention within the State of New York, if it has power of restoration. It is quite plain that the court would not undertake to compel restoration of the children if it were an impossibility for the asylum to restore them, but the jurisdiction to adjudicate and to determine whether the children are within the control and custody of the asylum and may be restored to the father does not depend upon their having been taken out of the territory of the State

Billotti v. New York Juvenile Asylum.

of New York, but upon the ability of the asylum to make restoration within the territory of New York.

There is a great deal to be said on both sides of this subject, and it has received exhaustive and masterly treatment in the Supreme Court of Michigan (Matter of Jackson, 15 Mich. Reps. 420). The statute of that State, like the statute of New York, confines the operation of the writ to persons detained "within this State." In the case cited the point was whether a writ of habeas corpus would issue from the Supreme Court of Michigan to a person within that State requiring him to bring into the State a minor child under his guardianship in that State and who had been and continued to be in another State. The court was equally divided upon the subject, and, although the question arose under a very different state of facts from that presented by the record before us, it seems to me that in the opinion of Judge Cooley, which was concurred in by Judge Christiancy, the jurisdiction and authority of the court to require obedience to the writ is so thoroughly established that it is only necessary to refer to that opinion for the learning and argument to vindicate the affirmative view of the proposition. The same general question of jurisdiction was very learnedly discussed in England in the case of The Queen v. Barnado (The Law Reps. Q. B. Div., vol. 24, p. 296), and the views of Fry, L.J., as expressed in that case also seem to me to be quite conclusive of the argument.

It only remains to consider upon the record in this case whether the New York Juvenile Asylum made it clear that it could not produce the children and restore them upon the demand of their father. I wish it to be distinctly understood that what has been previously said is to be limited to the writ of habeas corpus as affecting children detained from the custody of their parents or guardians. The views expressed arise from a consideration of the origin, history and peculiar office of the writ of habeas corpus at common law as applied to cases of this character.

Billotti v. New York Juvenile Asylum.

On the evidence before us we find that there was an undoubted wrongful parting by the New York Juvenile Asylum with the possession of these children. It is claimed that, under the fifth section of chapter 438 of the Laws of 1884, the institution had authority to bind them out by indenture. Such would have been the case if the asylum had not entered into a compact with the father that the retention of the children by it should continue but for two years. But if it had satisfactorily shown that it was impossible to restore the children to the custody of their father, then it might be claimed that the office of the writ was spent and that it should have been dismissed. But it was not satisfactorily shown that the authorities of the asylum could not produce the children in court by paying to the persons to whom they were bound that small indemnity which those persons seem to have been willing to accept for the surrender of the children. It is true that if the children had been produced in obedience to the writ it would have been for the court to determine whether it was for their best interest that they should be delivered into the custody of their father. If they were of a proper age to determine that matter for themselves or to have their wishes consulted, it would have been the duty of the court to give full consideration to their wishes. But the discussion is displaced when that element is introduced into the case as the determinant factor, for here the parent's right depends in the first instance upon the agreement the asylum made with him, either actual or implied, at the time the children were given into its custody, that they would be restored to him at the expiration of the two years.

For these reasons, I am of the opinion that the order appealed from should be affirmed, with $10 costs and disbursements.

O'BRIEN, J., concurs.

DeKlyn v. Gould.

BENJAMIN F. DEKLYN, APPELLANT, v. ANNIE W. GOULD, RESPONDENT, IMPLEADED WITH JOSEPH H. SIMPSON AND SIMPSON'S.

COURT OF APPEALS JANUARY TERM, 1901.

$1338.

Mechanic's lien. Owner not liable for improvements ordered by

tenant.

The provision of the Mechanic's Lien Law that a failure to state in the notice filed the name of the true owner or lessee against whose interest a lien is claimed shall not impair its validity, will not authorize a lienor, who has inserted the name of the lessee as the person against whose interest he claimed a lien, to afterwards proceed, contrary to his original intention, against the interest of the owner.

Mere knowledge on the part of the owner that improvements were being made on his premises by the lessee, beyond those called for in the lease which the lessee was to make at his own expense, is not alone sufficient to subject the owner's interest to a lien in behalf of a contractor. The consent of the owner, which the statute provides shall render him personally liable, cannot be implied on the absence of some affirmative act on his part tending to mislead the lessee or contractor. (Decided January 8, 1901.)

Appeal from a judgment of the Appellate Division, First Department, reversing a judgment entered upon the report of a referee in favor of the plaintiff in an action to foreclose a mechanic's lien against the respondent, the owner of premises on West Twenty-third street, New York, and the other defendants.

David Willcox and Louis M. Fulton for appellant.

John E. Parsons for respondent.

DeKlyn v. Gould.

LANDON, J.-The notice of lien stated "that the name of the owner against whose interest a lien is claimed is Simpson Company." It did not contain the name or designation, true or false, of any other person or party against whose interest a lien was claimed.

Section 4 of the Mechanics' Lien Law (chap. 342, Laws of 1885), under which this notice of lien was filed, requires that the notice shall contain "the name of the owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed." The statute does not invite the suppression of names; it requires the expression of the names of those persons against whose interest a lien is claimed, but it also contemplates that some other name than that of the true person against whose interest a lien is claimed may be stated, and hence it further provides: "But the failure to state. the name of the true owner, lessee, general assignee, or person in possession, shall not impair the validity of the lien." The corporate name of the Simpson Company was "Simpson's." As the name "Simpson Company" was used, the statute undoubtedly cures the failure to use the true name "Simpson's"; and this illustrates one phase of the meaning of the curative clause. If the referee had found that the lienor believed after due inquiry the Simpson Company to be the true owner, the case would be different. The evidence does not permit us to presume such to be the fact.

In the connection in which the word "failure" is here used, it evidently means an unsuccessful attempt to name or designate the true owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed. It does not mean that the lienor may name the lessee as the true person against whose interest he claims a lien, and then afterwards proceed against the lessor against whose interest he did not intend to file notice of a claim (Grippen v. Weed, 22 App. Div., 593, aff'd 165 N. Y.,). The contractor testified that before he filed